Citation Nr: 1142787
Decision Date: 11/22/11 Archive Date: 12/06/11
DOCKET NO. 05-05 922 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
1. Entitlement to service connection for a left ear hearing loss disability.
2. Entitlement to service connection for tinnitus.
3. Entitlement to service connection for chronic headaches.
4. Entitlement to service connection for chronic fatigue.
5. Entitlement to service connection for a left kidney with a constricted ureter.
6. Entitlement to a compensable rating for right ear hearing loss.
7. Entitlement to a rating higher than 20 percent for residuals of a low back injury.
8. Entitlement to a compensable rating of hemorrhoids before October 3, 2001.
9. Entitlement to an initial compensable rating for hepatitis C.
10. Entitlement to a rating higher than 30 percent before March 30, 2005, and a rating higher than 60 percent from March 30, 2005, for bacterial endocarditis with aortic valve replacement and hypertension.
11. Entitlement to an initial rating higher than 10 percent for anemia.
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
P. Childers, Counsel
INTRODUCTION
Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).
The Veteran, who is the appellant, served on active duty from September 1959 to December 1978, including service in Vietnam during the Vietnam era.
This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions in June 1992, in March 2004, in September 2005, and in October 2006 of a Department of Veterans Affairs (VA) Regional Office (RO or Agency of Original Jurisdiction (AOJ)).
In the rating decision in June 1992, the RO denied service connection for left ear hearing loss and for a left kidney disability and the claims for increase for residuals of a low back injury, a right ear hearing loss, and hemorrhoids.
The Veteran then perfected an appeal of the claims. In July 1995, the Board remanded the claims for further development.
In a rating decision in March 2004, the RO continued to deny a compensable rating for a service-connected right ear hearing loss disability and denied service connection for tinnitus and denied a claim for increase for service-connected residuals of bacterial endocarditis with aortic valve replacement with hypertension (endocarditis). The Veteran then perfected an appeal with regard to the claim for increase for endocarditis.
In a rating decision in July 2005, the RO increased the rating for the service-connected endocarditis from 30 percent to 60 percent effective March 30, 2005, and granted the claim for total disability rating for compensation based on individual unemployability effective March 30, 2005.
In a rating decision in September 2005, the RO denied service connection for migraine headaches, chronic fatigue syndrome, and anemia. The Veteran perfected an appeal of each of the claims.
In a rating decision in October 2006, the RO denied service connection for hepatitis C. In a rating decision in June 2007, the RO granted service connection for hepatitis C with an evaluation of 0 percent effective April 4, 2006; and service connection for anemia with an evaluation of 10 percent effective February 24, 2005. The Veteran the perfected an appeal of the assigned ratings.
In July 2011, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the Veteran's file.
The claims of service connection for a left ear hearing loss disability, tinnitus, and a left kidney disability and the claims for increase for a right ear hearing loss disability, residuals of a low back injury, hemorrhoids, hepatitis C, and anemia are REMANDED to the RO via the Appeals Management Center in Washington, D.C.
Claims of service connection for a prostate disorder, ischemic heart disease, and erectile dysfunction are raised by the record and are referred to an AOJ for appropriate action.
FINDINGS OF FACT
1. Chronic headaches are proximately due to service-connected hepatitis C.
2. Chronic fatigue is proximately due to service-connected hepatitis C and anemia.
3. Before September 3, 2003, endocarditis was not manifested by acute congestive heart failure, a workload of greater than 3 METs but not greater that 5 METs, or an ejection fraction of 30 to 50 percent; from September 3, 2003, endocarditis is manifested by estimated METs that more nearly approximate a workload of greater than 3 METs but not greater that 5 METs; since September 3, 2003, endocarditis is not manifested by chronic congestive heart failure, or a workload of 3 METs or less, or an ejection fraction of less than 30 percent.
CONCLUSIONS OF LAW
1. Chronic headaches are secondary to a service-connected hepatitis C. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. § 3.310 (2011).
2. Chronic fatigue is secondary to service-connected hepatitis C and anemia. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. § 3.310 (2011).
3. Before September 3, 2003, the criteria for a disability rating higher than 30 percent have not been met; since September 3, 2003, the criteria for a 60 percent rating, but not a 100 percent, for bacterial endocarditis with aortic valve replacement and hypertension have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.1, 4.104, Diagnostic Codes 7001, 7016 (2011).
The Veterans Claims Assistance Act of 2000 (VCAA)
The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim.
Duty to Notify
Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide.
Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006).
In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the Veteran's functioning.
The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004).
On claims of service connection for headaches and fatigue, the only claims of service connection resolved in this decision, have been decided in the Veteran's favor, the Board need not further address VCAA compliance.
On claim for increase for endocarditis, the RO provided VCAA notice by letters, dated in May 2005 and in October 2008. The Veteran was notified of the type of evidence needed to substantiate the claim for a higher rating, namely, evidence to show that the disability had worsened and the effect on employment. The Veteran was notified that VA would obtain VA records, and records of other Federal agencies and that he could submit other records not in the custody of a Federal agency, such as private medical records, or with his authorization VA would obtain any non-Federal records on his behalf. The notice included the general provisions for the effective date of a claim and for the degree of disability assignable.
As for the content of the VCAA notice, the documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); and of Dingess v. Nicholson, 19 Vet. App. 473 (notice of the elements of the claim).
As the VCAA notice came after the initial adjudication, the timing of the notice did not comply with the requirement that the notice must precede the adjudication. The procedural defect was cured as after the RO provided content-complying VCAA notice the claim was readjudicated, as evidenced by the statement of the case in March 2010. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) (Timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis.).
Duty to Assist
Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. VA and private records have been obtained. In addition, the Veteran was afforded VA examinations.
On the claim for increase for endocarditis, the reports of the VA examinations were based on consideration of the prior medical history and described the current disability in sufficient detail so that the Board's review of the claim is a fully informed one, the examinations are adequate. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Also, the record does not show a material change in the disability since the Veteran was last examined to warrant a reexamination under 38 C.F.R. § 3.327(a).
As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim for increase for endocarditis is required to comply with the duty to assist.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Service Connection Claims
Principles and Theories of Service Connection
Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110 and 1131.
Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38C.F.R. § 3.303(a).
The showing of a chronic disease in service requires a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b).
Service connection may also be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires (1) competent evidence of current chronic disability; (2) evidence of a service-connected disability; and (3) competent evidence that the current disability was either (a) caused by or (b) aggravated by a service-connected disability.
Evidentiary Standards
VA must give due consideration to all pertinent medical and lay evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a).
Competency is a legal concept in determining whether medical or lay evidence may be considered, in other words, whether the evidence is admissible as distinguished from weight and credibility, a factual determination going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997).
The Board, as fact finder, must determine the probative value or weight of the admissible evidence. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (citing Elkins v. Gober, 229 F.3d 1369, 1377 (Fed. Cir. 2000) ("Fact-finding in veterans cases is to be done by the Board")).
When there is an approximate balance of positive and negative admissible evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b).
Facts
The service treatment records contain no complaint, finding, history, treatment, or diagnosis of headaches or fatigue.
After service on VA examination in April 2007, the VA examiner noted that the Veteran had developed severe headaches associated with treatment for hepatitis C. The diagnosis was severe headaches associated with hepatitis C treatment.
On VA examination in April 2007, the diagnosis was hepatitis C with response to treatment and cirrhosis, eased with no decompensation. According to the VA examiner, the Veteran's fatigue did not meet the criteria of chronic fatigue syndrome, but the Veteran did have mild non-debilitating tiredness that was reasonably attributed to anemia.
In a statement in September 2007, the Veteran stated that he continued to suffer from severe headaches.
Private medical records, dating from 2008, document the Veteran's complaints of fatigue and weakness, which were attributed to liver disease. In a letter in April 2008 a private physician stated that although the Veteran's hepatitis C had been cured, the Veteran had cirrhosis, which caused problems with fatigue.
In July 2011, the Veteran testified that he has fallen secondary to weakness and fatigue. He testified that he was always exhausted and that his private physician told him that his chronic fatigue was caused by low hemoglobin. He also testified that he continued to suffer from recurrent, severe headaches.
The Veteran is service-connected for hepatitis C and for cirrhosis secondary to hepatitis C and for anemia.
Analysis
On the basis of the service treatment records alone, chronic headaches or chronic fatigue were not affirmatively shown to have been present during service. Moreover, as chronic headaches and fatigue were not noted, that is, observed, in service, and as there is no competent evidence either contemporaneous with or after service that symptoms of either were noted during service, and as the Veteran has not asserted otherwise, the principles of service connection pertaining to chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) do not apply. See Savage v. Gober, 10 Vet. App. 488, 495-96 (1997) (continuity of symptomatology requires that the evidence either contemporaneous with service or otherwise show that a condition was observed, that is, noted, during service, but does not require that such observation be recorded during service).
As for service connection based on the initial documentation after service under 38 C.F.R. § 3.303(d), headaches and fatigue are symptoms the Veteran as a lay person is competent to establish the presence of the disability. Bu there is no competent evidence that headaches and fatigue, first documented after service, had onset in service.
Rather the Veteran argues that headaches and fatigue are due to service-connected disabilities.
Although the Veteran is competent to declare that he has headaches and fatigue, where, as here, the determinative issue involves a question of a medical nexus or medical causation, competent medical evidence is required to substantiate the claim unless the Veteran's lay opinion is found to be competent evidence.
The Veteran as a lay person is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau).
In this case, the question of causation is not a simple medical condition that the Veteran as a lay person is competent to offer an opinion on without having specialized education, training, or experience. And it is not argued or shown that the Veteran is otherwise qualified through specialized education, training, or experience to offer an opinion on the cause of either headaches or fatigue.
Here the Veteran's lay opinion on causation is not competent evidence, and the Veteran's opinion as the cause of headaches or of fatigue is not admissible as evidence.
There is, however, competent medical evidence of record in favor of service connection on a secondary basis.
A VA examiner stated that the Veteran's severe headaches were caused by the treatment regime for hepatitis C. This evidence supports a finding of service connection on a secondary basis. Although the VA examiner stated that the headaches had resolved without residuals, the Veteran has testified that he continues to suffer from recurrent, severe headaches.
The Board finds that the Veteran's testimony of recurrent headaches is credible. Accordingly, as there is competent medical evidence, which is uncontroverted by any other medical evidence of record, that the Veteran's headaches were associated with service-connected hepatitis C and as there is credible lay evidence of recurrent, headaches, service connection for chronic headaches based on the theory of secondary service connection due to hepatitis C under 38 C.F.R. § 3.310 is established.
As for fatigue, on VA examination in May 2007, the Veteran complained of daily weakness and fatigue. The VA examiner noted that the Veteran had developed hemolytic anemia due to the treatment for hepatitis C and that the Veteran required weekly intravenous iron therapy. The diagnoses included anemia secondary to hepatitis C. The examiner added that the Veteran's fatigue was reasonably attributed to anemia.
A private physician also related the Veteran's complaints of fatigue to liver disease. The Board finds this evidence from VA and private physicians, which is uncontroverted by any other medical evidence of record, to be highly probative evidence in support of the Veteran's claim of secondary service connection for fatigue.
As there is no competent evidence of record against the claim, service connection for chronic fatigue based on the theory of secondary service connection due to the service-connected hepatitis C and anemia under 38 C.F.R. §3.310 is established.
Increased Rating Claim
Principles of Rating
A disability rating is determined by application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4.
The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.
VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991).
Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7
The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).
Endocarditis
Endocarditis is rated under Diagnostic Code 7001-7016. Under Diagnostic Code 7001 (endocarditis), as well as Diagnostic Code 7016 (heart valve replacement), the criteria for a rating of 60 percent are more than one episode of acute congestive heart failure in the past year, or a workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent. 38 C.F.R. § 4.104, Diagnostic Codes 7001, 7016.
The criteria for the highest rating of 100 percent are chronic congestive heart failure, or, a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent.
Facts
In a rating decision in June 1997, the RO granted service connection for residuals of bacterial endocarditis with aortic valve replacement with hypertension with a rating of 100 percent from March 18, 1991, and a rating of 30 percent from May 1, 1992.
In 2002, the Veteran filed the current claim for increase.
An X-ray in January 2002 showed no evidence of recent or active heart disease.
In March 2002, the Veteran was seen by a private heart specialist for complaints of chest pressure. The Veteran stated that he had had episodes of very mild, substernal, and left precordial chest pressure over a few weeks. He denied any dyspnea on exertion, orthopnea, PND, edema, syncope, or palpitations. An echocardiogram showed atrial fibrillation, slightly increased ventricular response, and nonsignificant ST and T wave changes. The left ventricular ejection fraction was greater than 60 percent. The pertinent diagnoses were new onset atrial fibrillation, basically asymptomatic, and atypical chest discomfort.
In January 2003, the Veteran underwent stress testing. The pertinent diagnoses were atrial tachycardia and a normal left ventricle systolic function. In February 2003, there was a normal left ventricular function. An echocardiogram showed atrial fibrillation. The diagnosis was coronary artery disease and atrial fibrillation. It was noted that the Veteran had had an abnormal stress thallium suggestive of a prior inferior myocardial infarction, but in March 2003 cardiac catheterization showed no evidence of coronary artery disease. In May 2003, there was no clinical recurrence of atrial fibrillation.
The Veteran denied any dyspnea on exertion, orthopnea, PND or edema, or syncope. Cardiac examination found regular rhythm. The diagnosis was stable aortic valve replacement and paroxysmal atrial fibrillation, clinically quiescent.
VA records in August 2003 showed no symptoms of congestive heart failure. In November 2003, the Veteran's vital signs were stable.
On VA examination on September 3, 2003, the Veteran complained of occasional atypical sharp shooting chest pain over the left side. He denied any PND, orthopnea, edema, palpitations, and syncope. METS were estimated to be 5 to 6.
In March 2004, the diagnosis by ECGs was atrial fibrillation and aortic valve replacement.
Private records in August 2004, including an electrophysiology study and radiofrequency ablation, document persistent atrial flutter. In December 2004, the Veteran had ablation for the atrial flutter. An electrocardiogram showed normal sinus rhythm with frequent PACs, which were asymptomatic. In March 2005, the Veteran complained of fatigue, shortness of breath on over exertion, and edema. He denied chest pain. An echocardiogram showed atrial flutter with controlled ventricular response.
On VA examination in March 2005, the Veteran denied any significant chest pain but complained of fatigue, weakness, and no energy while walking. Examination found evidence of congestive heart failure, which the examiner remarked had been compensated with diuretics and other medications. Electrocardiogram showed atrial flutter. METS were estimated to be 4 to 5.
In April 2005, private medical records show that since the ablation the Veteran had done well. The Veteran's energy level had improved and there were no palpitations, heart racing, chest pain, or shortness of breath.
An electrocardiogram showed normal rhythm with first degree A-V block and PACs. Cardiac examination found regular rhythm and normal sounds. There was a 2/6 systolic murmur at the base radiating toward the neck. The PMI was not displaced. The diagnosis was atrial flutter and asymptomatic PACs.
In a rating decision in July 2005, the RO increased the rating for the Veteran's service-connected endocarditis from 30 percent to 60 percent effective March 30, 2005.
On VA examination in April 2007, the Veteran complained of chest pain 2 to 3 times per week without exertion, lasting from 30 to 45 minutes. He also complained of shortness of breath, weakness, and fatigue. THE ejection fraction was 55 to 60 percent. The diagnosis was remote history of aortic valve replacement due to bacterial endocarditis with residuals. METS were estimated to be 6. The examiner stated that the Veteran was able to walk a half mile without difficulty.
In January 2008, private medical records noted a normal heart size.
VA records in March 2008 noted atrial fibrillation.
On VA examination in November 2008, the Veteran complained of fatigue, dizziness, and a fast heartbeat. The examiner stated that there was evidence of congestive heart failure. The ejection fraction was 60 percent. METS were estimated to be 4.5. The examiner stated that the Veteran was able to walk at a brisk pace for 1 mile and he could occasional lift 50 pounds.
In January 2009, an echocardiogram showed mild concentric left ventricular hypertrophy with normal left ventricular systolic function, moderate left atrial enlargement, mild to moderate mitral regurgitation, a known autograft in the aortic position with mild regurgitation, a known bioprosthesis in the pulmonic position with mild stenosis, a mild tricuspid regurgitation with a mild elevation in estimated right ventricular systolic pressure. The ejection fraction was 60 percent.
In April 2010, private medical records documented asymptomatic frequent PACs and blunted heart rate response.
Analysis
Before September 3, 2003, an X-ray in January 2002 showed no evidence of recent or active heart disease. In March 2002, the Veteran stated that he had had episodes of very mild, substernal, and left precordial chest pressure over a few weeks. He denied any dyspnea on exertion, orthopnea, PND, edema, syncope, or palpitations. An echocardiogram showed atrial fibrillation, slightly increased ventricular response, and nonsignificant ST and T wave changes. The left ventricular ejection fraction was greater than 60 percent. In January 2003, the pertinent diagnoses were atrial tachycardia and a normal left ventricle systolic function. In February 2003, there was a normal left ventricular function. An echocardiogram showed atrial fibrillation. In March 2003, cardiac catheterization showed no evidence of coronary artery disease. In May 2003, the diagnosis was stable aortic valve replacement and paroxysmal atrial fibrillation, clinically quiescent. In August 2003 there were no symptoms of congestive heart failure.
In the absence of evidence of more than one episode of acute congestive heart failure, or a workload of greater than 3 METs but not greater than 5 METs, or left ventricular dysfunction with an ejection fraction of 30 to 50 percent, the criteria for a rating of 60 percent before September 3, 2003, have not been met. Diagnostic Code 7016.
On VA examination in September 3, 2003, the METS were estimated to be 5 to 6.
On VA examination in March 2005, the VA examiner stated that congestive heart failure had been compensated with diuretics and other medications. METS were estimated to be 4 to 5. On VA examination in April 2007, the ejection fraction was 55 to 60 percent. METS were estimated to be 6.
On VA examination in November 2008, the VA examiner stated that there was evidence of edema a sign of congestive heart failure. The ejection fraction was 60 percent. METS were estimated to be 4.5. In January 2009, an echocardiogram showed mild concentric left ventricular hypertrophy with normal left ventricular systolic function, moderate left atrial enlargement, mild to moderate mitral regurgitation, a known autograft in the aortic position with mild regurgitation, a known bioprosthesis in the pulmonic position with mild stenosis, a mild tricuspid regurgitation with a mild elevation in estimated right ventricular systolic pressure. The ejection fraction was 60 percent.
Starting with the VA examination on September 3, 2003, the estimated METs of 5 to 6, 6, and 4.5 more nearly approximate the criteria of a workload of greater than 3 METs but not greater than 5 METs, which meets the criteria for a rating of 60 percent under Diagnostic Code 7016.
From September 2003, in the absence of evidence of a workload of 3 METs or less or an ejection fraction of less than 30 percent, the criteria for a 100 rating have not been met under Diagnostic Code 7016.
On VA examination in March 2005, the VA examiner stated that congestive heart failure had been compensated with diuretics and other medications. On VA examination in November 2008, the VA examiner stated that there was evidence of edema a sign of congestive heart failure, but in the absence of evidence of chronic congestive heart failure, the criteria for 100 percent under Diagnostic Code 7016 are not met.
In summary, before September 3, 2003, the criteria for a rating higher than 30 percent had not been met. From September 3, 2003, the criteria for a 60 percent rating, but not a 100 percent rating, have been met.
Extraschedular Consideration
Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for such a rating.
The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate. This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria.
If the criteria reasonably describe the disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular rating is therefore adequate and referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111, 115 (2008) aff'd Thun v. Shinseki, 2009 WL 2096205 (Fed. Cir. July 17, 2009).
The Board finds that the rating criteria reasonably describe the Veteran's symptomatology. In other words, the Veteran does not have symptomatology not already encompassed in the Rating Schedule.
As the disability picture is encompassed by the Rating Schedule, the assigned schedular rating is, therefore, adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1).
ORDER
Secondary service connection for chronic headaches is granted.
Service connection for chronic fatigue is granted.
A disability rating higher than 30 percent before September 3, 2003, for bacterial endocarditis with aortic valve replacement and hypertension is denied.
A disability rating of 60 percent from September 3, 2003, but not higher, for bacterial endocarditis with aortic valve replacement and hypertension is granted, subject the law and regulations, governing the award of monetary benefits.
REMAND
Before a decision on the following claims can be made, further development under the duty to assist is needed.
Left Ear Hearing Loss
On the claim of service connection for a left ear hearing loss disability, an in-service Audiology Clinic record dated in October 1978 showed bilateral high frequency sensorineural type hearing loss. After service in a rating decision in April 1979, the RO granted service connection for high frequency hearing loss, which was not qualified further as either bilateral or unilateral. The RO did find that bilateral hearing loss was noted in service.
In April 1992, the RO submitted a request for examination of the Veteran's service-connected bilateral hearing loss.
On VA examination in May 1992, there was a severe hearing loss in the right ear, but left ear hearing was within normal limits. In a rating decision in June 1992, the RO for the first time classified right ear hearing loss as service-connected and the left ear hearing loss as not service-connected. In July 1992, the RO notified the Veteran that he was not entitled to service connection for left ear hearing loss. In June 1993, the Veteran perfected an appeal on the claim of "service connection" for a left ear hearing loss disability. In July 1995, the Board remanded the matter for additional development. On VA examination in September 1995, the VA examiner stated that although left ear hearing was is within normal limits, medically a high-frequency, sensorineural hearing loss had been present since before leaving active duty.
In the Supplemental Statement of the Case in May 1997, the RO continued to deny the claim of service connection for left ear hearing loss disability.
In view of the rating decision in April 1979, the Board finds that rating decision in June 1992 was a severance of service connection without the procedural safeguards of 38 C.F.R. § 3.105(d). For this reason, further procedural development is needed.
Tinnitus
On the claim of service connection for tinnitus, on VA examination in October 2003, the VA examiner stated that tinnitus was most likely not related to military noise exposure. The VA examiner did not address whether tinnitus may be secondary to the service-connected right ear hearing loss disability. See Schroeder v. West, 212 F. 3d 1265, 1271 (Fed. Cir. 2000) (holding that VA has an obligation to investigate all theories of entitlement). As the evidence is inadequate to decide the claim, further development under the duty to assist is needed.
Left Kidney
On the claim for service connection for an ectopic left kidney, the appeal stems from a rating decision in June 1992. In July 1995, the Board remanded the claim to afford the Veteran a VA examination, which was conducted in October 2005, to determine whether the congenital ectopic left kidney was aggravated during service. As the requested opinion was not rendered, a remand for compliance with the Board's remand directive is required.
Right Ear Hearing Loss
On the claim for increase for right ear hearing loss, in July 2011, the Veteran testified that his right ear hearing was worse and that he had an appointment with VA for another evaluation for hearing aids. As the Veteran's testimony suggests an increase in disability, reexamination is warranted under 38 C.F.R. § 3.327.
Residuals of a Low Back Injury
On the claim for increase for residuals of a low back injury, the Veteran testified that he has severe pain and limitation of motion, which occur about once a month, and are incapacitating. As it appears that there may have been a material change in the Veteran's disability since his last examination, a reexamination unde 38 C.F.R. § 3.327 is warranted.
Hemorrhoids
In July 1995, the Board remanded the claim to afford the Veteran a VA examination. In a rating decision in January 2002, the RO increased the rating to 20 percent from October 3, 2001, which is the maximum schedular rating for hemorrhoids under Diagnostic Code 7336.
Although the maximum schedular rating was assigned, the claim of compensable rating before October 3, 2001, remains on appeal. Because the claim was developed before the enactment of the VCAA and there was no further adjudication of the claim after the supplemental statement of the case in May 1997, pertaining to a compensable rating, further procedural due process is required before deciding the claim.
Hepatitis C
On the claim for increase for hepatitis C, with the grant of service connection for chronic fatigue secondary to hepatitis C and anemia, and as criteria for the next higher rating for hepatitis C, 10 percent, under Diagnostic Code 7345, include intermittent fatigue, further development under the duty to assist is needed.
Anemia
On the claim for increase for anemia, in a rating decision in June 2007, the RO granted service connection for anemia and assigned a 10 percent rating. In May 2008, the Veteran submitted a notice of disagreement with the assigned rating, but a statement of the case, addressing the claim has not been issued.
Where a notice of disagreement has been filed with regard to a claim, and a statement of the case has not been issued, the appropriate Board action is to remand the issue to the RO for issuance of a statement of the case. See Manlincon v. West, 12 Vet. App. 238 (1999).
Accordingly, the case is REMANDED for the following action:
1. On the claim of service connection for a left ear hearing loss disability, determine whether the rating decision in June 1992 was:
a). A severance action and, if so, comply with 38 C.F.R. § 3.105(d);
b). If the rating decision in June 1992 was not a severance action, but an administrative error, the claim should be construed as a claim for increase and the Veteran should be afforded a VA audiology examination to determine the current level of bilateral hearing loss.
2. Afford the Veteran a VA audiology examination to determine the current level of hearing loss. The VA audiologist is asked:
a). To describe the functional effects caused by hearing loss on the Veteran's ordinary activities; and
b). To express an opinion on whether tinnitus is caused by or aggravated by service-connected hearing loss.
The Veteran's file should be provided to the examiner for review.
3. Ensure VCAA compliance on the claim for a compensable rating for hemorrhoids before October 3, 2001, and the claim of service connection by aggravation for an ectopic left kidney.
4. Afford the Veteran a VA examination for an opinion as to whether congenital ectopic left kidney was aggravated by service.
The significant facts of the claim are summarized as follows:
The service treatment records disclose that in December 1957, a date prior to service, the Veteran had surgery for an "ectopic (pelvic)" left kidney and a ureter junction stricture. The service treatment records also indicate that in 1957 a simple ureteroplasty had been performed to relieve the stricture, and that in September 1959, during service, the Veteran had undergone an instrument dilatation of the left ureter to ensure against return of the stricture. Several subsequent urinalyses were negative. In December 1960, an excretory urogram had shown mild caliectasis. In November 1962, the Veteran complained left- sided flank pain and nausea, but no further treatment was indicated.
In formulating the opinion, the VA examiner is to consider that a pre-existing condition is aggravated by service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the normal progress of the disease.
The Veteran's file should be provided to the examiner for review.
5. Afford the Veteran a VA examination to determine the level of impairment due to the service-connected residuals of a low back injury.
a). The VA examiner is asked to describe range of motion of the lumbosacral spine in degrees of forward flexion and any additional functional loss of forward flexion, due to pain, weakness, fatigability, pain on movement, including during flare- ups or with repetitive use; if feasible, any additional functional loss should be expressed in terms of degrees of additional limitation forward flexion;
b). The examination should include a description of any objective neurological abnormality; and,
c). Whether there are any incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months, necessitating bed rest and treatment by a physician.
The Veteran's folder should be made available to the examiner for review.
6. On the claim for increase for hepatitis C, rate the disability under Diagnostic Code 7345, considering fatigue as a manifestation.
7. On the claim for increase for an initial rating higher than 10 percent for anemia issue a statement of the case.
8. After the above development is completed, if any benefit sought is denied, furnish the Veteran a supplemental statement of the case and return the case to the Board.
The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
The claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).
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George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs